OM PRAKASH KUMAWAT Vs. HERO HOUSING FINANCE LIMITED

JUDGEMENT

(1.) Although, the matter come up on an application No.1/2022 but, with the consent of learned counsels for the respective parties, the writ petition was heard on its merit at this stage.

(2.) This writ petition has been filed by the borrowers for quashing the order dtd. 15/3/2022 passed by the Chief Metropolitan Magistrate, Jaipur Metropolitan-I in Civil Miscellaneous Case No.164/2022 (CIS No.168/2022) under Sec. 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, "SARFAESI Act") with a further direction to the respondent to grant them benefit of moratorium.

(3.) With regard to maintainability of the writ petition despite availability of an efficacious and alternative remedy under the provisions of the SARFAESI Act, learned counsel for the petitioner, relying upon a judgment of Hon'ble Apex Court of India in case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Limited and Others; (2014) 6 SCC 1, submitted that remedy of appeal is not available to them against an order passed under Sec. 14. He submitted that in view of existence of an arbitration clause in the loan agreement and filing of an application under Sec. 9 of the Arbitration and Conciliation Act, 1996 (for brevity, "the Act of 1996") by the respondent, the respondent could not have resorted to the provisions of Sec. 14 of the SARFAESI Act. In this regard, he placed reliance upon judgments of Hon'ble Apex Court of India in the cases of SBP and Co. Vs. Patel Engineering Ltd. and Another; (2005) 8 SCC 618 and Vidya Drolia and Ors. Vs. Durga Trading Corporation; 2021 (1) WLC (SC) Civil 257. He, therefore, prayed that the writ petition be allowed and the order impugned dtd. 15/3/2022 be quashed and set aside.